Obama’s recess appointments

Its been something that all recent modern presidents have had to go through – nominees for office have been held up or blocked by the legislative branch in their “advise and consent” role for various reasons. Frankly, I’ve been of the opinion that leaders should be able, within reason obviously, to appoint who they wish to political positions their election entitles them to fill. Elections have consequences.

However that’s not the reality of the situation, is it? Both sides play this game. And believe it or not there are “rules” or precedence which guides even this process.

One of the things that has become crystal clear is that despite all the previous rhetoric from then candidate Obama about the “executive president” and how George W Bush was abusing his power, Obama the president has no qualms about doing what Bush did and more.

Signing statements, something Obama condemned on the way to the White House, are now routine for the Obama administration.

As for these most recent recess appointment? Well, it’s a matter of timing, and again this administration has decided it will simply do what it wishes, regardless of the law:

Obama infuriated Republicans Wednesday by announcing the recess appointment of Richard Cordray to be the first director of the Consumer Financial Protection Bureau (CFPB). Senate Republicans had blocked Cordray’s nomination for months, so the president bypassed them with a recess appointment during the holiday break.

He followed that up later in the day with recess appointments for three members of the National Labor Relations Board (NLRB), heading off another likely GOP filibuster.

The recess appointments broke with legal precedent, as they while the Senate is holding regular pro forma sessions. Republicans insist the Senate has not been in recess thanks to the seconds-long sessions held every few days, but White House attorneys determined the procedural move is a gimmick that can be ignored by the president.

But the appointments may have been illegal, according to past administration statements. Obama’s own lawyers publicly stated in a 2010 exchange with Supreme Court Chief Justice John Roberts that the president doesn’t consider a congressional recess official — meaning he can’t legally exercise his recess appointment power — until Congress has been gone for three full days. ‘The recess appointment power can work in — in a recess,’ Obama’s Deputy Solicitor General Neal Katyal said. ‘I think our office has opined the recess has to be longer than three days [to make an appointment].’ The Senate entered a recess on Tuesday, after having held a pro forma session to keep Obama from making any recess appointments. Another was planned for Friday. By making the appointments just one day after the Senate went into a recess, Obama appears to breaking his own administration’s rules and, as scores of Republicans are quick to point out, decades of executive precedent."

And, of course, the usual hypocrisy is afoot:

According to The Hill, Obama’s move breaks from 20 years of precedent while violating a policy established under fellow Democrat and former President Bill Clinton’s administration.

During the Bush administration, Senate Majority Leader Harry Reid denounced recess appointments and conducted the same pro forma Senate sessions. It’s unclear what, if anything, Reid will say or do about Obama exhibiting a disregard for his advice.

In an update, Treacher reports:

Reid has backed Obama’s decision to make the recess appoints, contradicting his previous arguments about how recess appointments are “mischievous.” A spokesperson for Reid didn’t immediately return The Daily Caller’s request for comment on whether Reid has a new, enlightened argument or is just playing partisan politics to help Obama.

I’m sure Majority Leader Reid has a splendid explanation for now saying precisely the opposite of what he was saying under a GOP administration while he held the same position.

Nothing like the rule of men instead of the rule of law, no?

It makes life so … interesting, doesn’t it?

As for the Constitution, it is now available in the White House shop in convenient toilet paper rolls.

@Neo_ I think they should end the filibuster, no matter who is charge, elections should have consequences. Of course I don’t recall Democrats ever using the filibuster to the extent it has been used by GOP lately. When we speak of adherence to the Constitution, does anyone mean the spirit, because it certainly was not the spirit of the Constitution that required 60% to do what a 51% majority was able to accomplish throughout most of our history.

@CaptinSarcastic @Neo_ I think they should end the filibuster, no matter who is charge, elections should have consequences. Of course I don’t recall Democrats ever using the filibuster to the extent it has been used by GOP lately.

@The Shark @Neo_ Wow, one example of the Democratic use of filibuster, you got me. That complete cancels out the 100+ filibusters that launch every session under the GOP since they lost the majority compared to the record of 58 filibusters by Democrats back in 1999.

@Ragspierre @Neo_ Sweet, it sounds like you want to argue the point so badly, but just don’t have any actual facts (or even made up facts) on which to argue, so you retreat to your old stand by, the ad hominem. Are you going to disagree with the assertion that the GOP has used the filibuster far more than Dems, or just put your fingers in your ears and yell, “stupid, stupid, stupid”?

Oh, you’ll get a kick out of Ragspierre.
Have you ever been to a batting cage? Well, Rags is the cage where it throws nothing but slow ones right over the plate. It’s so easy, let’s hope you don’t get bored.

@CaptinSarcastic @Neo_ So exactly what is the magic number then? They both make liberal use of it. I’d argue it’s actions like this that show the GOP to be in the right in wielding the fbuster to that degree.

@Ragspierre @Neo_ Most filibusters have been in opposition to laws, like 2010’s filibuster AGAINST revising the healthcare bill to eliminate the problematic provision of having to create 1099’s for smaller transaction. But really, this is your idea of crazed, filling a position in a agency created by Congress with an opposition party member who has broad mainstream support across the political spectrum? This is all about trying to undermine another law that Republicans don’t like, yet can’t do anything about and the President chose to fight rather than cave. If it’s illegal, the courts will decide, which way do you think it will go?

@The Shark @Neo_ I think that the use of the filibuster to this degree show why the President had to escalate. See, it goes both ways, but what do you think the voting public is going to think? My money says they will CONTINUE to see Republicans as the bad guys.

The next Republican President will of course make recess appointments if there is a filibuster or a refusal to take up his appointments, and if the Senate chooses to have “seconds long sessions every few days” to pretend to never be in recess, that President will ignore that tactic as well.
Am I reading this wrong, or is this a GOP tactic to attempt to block recess appointments by holding pro-forma sessions for a few seconds every few days? Is this outrage because the President did something new as a reaction to the Senate GOP doing something new?
We have really, really broken our system.

@The Shark You are correct, this is an escalation. It was going to happen eventually, I guess Obama’s thinks a brawl works in his favor.

As to endorsing this President, I think he is better than the alternative, but only marginally. We are systemically handicapped by the campaign funding and lobbying systems that will assure the essential status quo until the system is changed. Changing the President or the party in power in the House or Senate won’t really matter. I am not inclined to even bother voting and giving the system itself legitimacy.

>>> Cap, you are correct in that. He gets to energize his base, and push his agenda. If the GOP fights him too hard, he gets to run against the obstructionist congress. So he’ll win this round. But I tell you this – if he does win the election, there will be payback for this in a lot of ways.

@CaptinSarcastic “It was going to happen eventually, I guess Obama’s thinks a brawl works in his favor.
”

Really? Everybody does it sooner or later? That’s the answer? Color me disappointed in your response.
Not that it matters really, but it certainly took a nice chunk out of the credability cake don’t you think?

These sorts of things are either right or wrong, and ‘everybody does it’ has never been, and never will be, an answer, and that means when the party I favor is in power and when it is not.

People who think it’s okay to whack others with a big stick when they’re in charge, because they’re in charge, forget that once they’re not in charge, the stick they so ably carved and plied has a tendency to pass to the next master.

@looker I think this is being spoken of as if habeus corpus had been suspended (it has), but this is wonky crap. The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. There have been opinions and briefs that attempt to answer this, and we have generally held to those briefs, but they are opinions, not the plain text of the Constitution. There have been previous recess appointments during breaks of less than three days at least twice in the past, 1903 and 1949. The Senate still has to confirm the apppointment by the end of next year. But, if I understand this correctly, once a recess appointment is made, the appointee can only be confirmed or not confirmed ny a majority vote, a filibuster cannot be used to prevent confirmation.

@Ragspierre @looker No, not The Constitution as wonky crap, wrangling over what a recess is and pretending that a Clinton Administration memorandum on the subject is defacto law. Ironic, considering how much of what came out of the Clinton White House you would dismiss out of hand.

Here is what the Senate’s own FAQ says on the subject:

“The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice has offered differing views on this question, and NO SETTLED UNDERSTANDING APPEARS TO EXIST. In 1993, however, a Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days. In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. “

@looker That is truly frightening and so disappointing that our government has so little regard for actual people that they would not only allow this, but approve of it with a massive bi-partisan majority in the Senate (87-13), and solid majority in the House (290 – 133). And of course Obama signed it with a promise not use it that can be reversed as easily as saying “I was just kidding”. It should be clear that we just don’t matter anymore, we are not even cogs in the machine, just some screws that need to be tightened a little for a day every couple of years.

@Ragspierre @looker Bush honoring the memorandum does not make it part of the Constitution, you do understand that, right? This is not a rule, but an attempt to create an understanding where there is no guiding Constitutional principle. As I showed previously, and Pogue posted recently, “The Constitution does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” When the two sides are in partisan battle, understandings are going to get thrown out. There are 5 solid conservatives on the court, if you are right, they will overturn this appointment, but they won’t, and I’ll bet you know they won’t, because they have no Constitutional basis to do so.

@CaptinSarcastic As with the commerce clause or the second Amendment – there was tacit understanding by the guys passing it what it would be used do and what it would NEVER be used to do. So long as the wind blows, and the grass grows….

The problem with all these rules (the current Senate in Session rule as well) is they don’t look down the road to where the next guy looking to stretch his power will do that which they all tacitly agreed would not be done. And there will be no hard guiding rule, and there will be no precedent, and they will do as they will.

I can easily foresee regular citizens who cause enough inconvenience and aggravation for government officials being thrown in dark holes after being labeled ‘terrorist’.

@looker It may have already happened, we won’t even necessarily know. The whole poin of habeus corpus is to separate the cop from the trial, this effectively gives the cop the power of judge and jury. It doesn’t even matter whether this power is used to make it’s mere existence as law antithetical to our core principles.

First they came for the (people who someone with power named as suspected) terrorists, but I wasn’t terrorist…

@Ragspierre The Constitution is not uncorruptible, it is only as good as the people charged with governing, and across the board, they suck. This gamesmanship is the least of my worries, and I am more concerned with the complete failure of our representative government to represent people, favoring their lobbyists and clients (right or left).

@Ragspierre @CaptinSarcastic This has a simple solution. You just make it a felony to take a position in the federal government by an illegal appointment, punishable by 10 years in jail and a $10 million fine.

@CaptinSarcastic : It’s not new. Reid did it during the Bush presidency to prevent him from making recess appointments (when Obama was a Senator who apparently had no problem with the tactic). The outrage is because Obama is blatantly violating the Constitution which provides that neither house can adjourn for more than 3 days without the permission of the other. Boehner won’t give permission, so Reid has someone bang the gavel each day in the Senate.

The nomination process is pretty screwed up, but violating the Constitution isn’t the way to fix it.

“Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” — Louis Brandeis, dissenting, Olmstead v. United States, 277 U.S. 438 (1928).

<blockquote><blockquote>During the presidency of George W. Bush, Democrats actively filibustered the confirmation of federal appeals court nominee William Pryor, largely because of the conservative reputation he gained while serving as the attorney general of Alabama.

A Republican-led Senate coalition fell seven votes shy of invoking cloture to end this filibuster. Following this defeat, Bush circumvented the Senate by recess appointing Pryor, during a ten-day Senate recess in February 2004. Outraged Democrats, led by Senator Ted Kennedy (D-MA), filed an amicus curiae brief in support of a lawsuit that challenged the legality of Pryor’s appointment. Kennedy asserted that it was unconstitutional to make recess appointments during the short intrasession recesses that occur during a congressional session. Eight months later, the Eleventh Circuit Court of Appeals rejected Kennedy’s challenge, ruling that the Constitution “does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause”</blockquote>
The Supreme Court refused to take up the appeal of the case, and the decision still stands as good law.</blockquote>

@PogueMahone Tom Maguire at Just One Minute blog outlines how the Dodd-Frank Act expressly calls for the confirmation of Director of the Bureau.

…Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”

@PogueMahone Under Section 1066 of the Dodd-Frank Act, after the DTD and before the confirmation of a Director, the Secretary (and his designee) can continue to exercise authorities transferred from other federal agencies, such as the authority to: (1) adopt regulations under the Truth in Lending Act (TILA) and other enumerated federal consumer financial laws; and (2) examine large depository institutions for consumer compliance. However, the Secretary and his designee cannot perform new functions during this period. For example, the report states that the Secretary (and any designee) may not during this period adopt rules prohibiting unfair, deceptive, or abusive acts or practices in connection with consumer financial products and services, or supervise or examine nondepository institutions.
In other words, even if the recess appointment is Constitutional, the statue requires a confirmation of the director before the Bureau can begin any enforcement actions (i.e. the recess appointed director is as powerless as Elizabeth Warren).

And in the event the Republicans use a filibuster more often than do democrats, so what? The President in fact has no right to an up or down vote on their nominees. If the President’s party cannot raise the votes to pass vital appointments, it is up to the public to vote more or less of them into the Congress–so it becomes a moot point.

@tom perkins Are you suggesting that 60 votes should be required number of votes for any business to be concluded? That is a violation of the Constitution in itself, which specifically proscribes the types of business where a super-majority must be required. Adding everything the minority wishes to stop to that list should require a Constitutional amendment, not a procedural technicality of the Senate. Moreover, it was the Republican Controlled House, as lobbied On Wednesday, when 20 Senators led by David Vitter and Jim DeMint wrote a letter to Speaker Boehner asking him to use his authority under Article 1, Section 5 to block the recess appointments. That authority was the requirement that neither the Senate nor the House can take a recess longer than 3 days without the consent of the other. But this leads to another Constitutuonal question, because a break is less than 3 days, does not mean it is not a recess. There is no Constitutional ruling on this matter. It may be that any day that the Senate does not conduct business is a recess. This will end with the President being able to get a quick up or down vote on his nominess, as it should be, if not, the President may well be able to make appointments on weekends.

I am suggesting the Constitution says what it says–the two chambers get to make the rules for their members. If they say a majority of 3/5 is required to force a vote, then that’s what it requires.

“must be required.”

Must be, not may be. Per the constitution.

“But this leads to another Constitutuonal question, because a break is less than 3 days, does not mean it is not a recess.”

Except is has already been demonstrated it was not a recess and legislative action was taken, also, the clear original intent was that the President was to be able to make appointments during times the legislature could not come to a quorum with any speed. Now they can do it in 8 hours, or less if they really need to move. Does this mean any break of more than a few hours is a recess? No. It means what it has always meant, there is a recess when the two houses leaders say there is, and not before.

Between the ability to undercut the SCOTUS by creating inferior “designer” courts of appeal, the ability to impeach, and the ability to subpoena–it is clear the of the roughly co-eval branches, the Founders desired that the Legislature have the balance of power; if they were united as a body (large supermajority).

If they are not so united, then they can stymie the other two through inaction, per the rules the constitution permits them to make for themselves.

You need way more amendments than you’ve said you know of to get what you want.